American Federation of Government Employees, Local 1592 (Union) and United States Department of the Air Force, Hill Air Force Base, Utah (Agency)

65 FLRA No. 193                                                                              
LOCAL 1592
(64 FLRA 861 (2010))
June 15, 2011
Before the Authority: Carol Waller Pope, Chairman, and Thomas M. Beck and Ernest DuBester, Members
I.     Statement of the Case
        This matter is before the Authority on an exception to an award of Arbitrator Barbara Bridgewater filed by the Agency under § 7122(a) of the Federal Service       Labor-Management Relations Statute (the Statute) and part 2425 of the Authority’s Regulations. The Union filed an opposition to the Agency’s exceptions. 
In an award on remand from the Authority (remand award), the Arbitrator found that the grievant is entitled to an award of attorney fees. For the reasons that follow, we deny the Agency’s exception.
II.    Background and Arbitrator’s Awards 
        The Union filed a grievance challenging the Agency’s denial of the grievant’s request for compensatory time off. See AFGE, Local 1592, 64 FLRA 861, 861 (2010) (Local 1592). The grievance was not resolved and was submitted to arbitration. See id. In the award on the merits (merits award), the Arbitrator awarded the grievant three hours of compensatory time off (comp time), but denied the grievant’s request for an award of attorney fees on the ground that comp time does not constitute “pay, allowance[s,] or differential[s]” within the meaning of the Back Pay Act (BPA), 5 U.S.C. § 5596. See id. 
        The Agency did not except to the award, but the Union excepted to the Arbitrator’s denial of attorney fees. In Local 1592, the Authority found that the award of comp time constituted an award of pay, allowances, or differentials under the BPA. See id. at 862. Accordingly, the Authority concluded that the basis for the denial of fees was deficient and remanded the award to the parties for resubmission to the Arbitrator, absent settlement, for a resolution of the fee request. See id.
        On remand, the Agency contended that, during the arbitration hearing on the merits of the grievance, it had granted the grievant the disputed comp time, and that the time had appeared in time and attendance records prior to the issuance of the merits award. Remand Award at 3. The Agency argued that, as a result, the grievant was not a prevailing party, as required for an award of attorney fees under 5 U.S.C. § 7701(g) (§ 7701(g)). Id. (citing Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598 (2001) (Buckhannon)). 
        The Arbitrator acknowledged that the Agency had granted the grievant the disputed comp time prior to her merits award, but stated that she “did not have a factual basis for considering the instant matter to be moot.” Id. In this connection, she stated that “because she awarded the [g]rievant [three] hours of . . . comp time in her [merits award], based on the merits of his grievance, the [g]rievant is a prevailing party.” Id. at 4. Thus, she concluded that the grievant was entitled to an award of attorney fees. Id.
III. Positions of the Parties
        A.    Agency’s Exception
        The Agency contends that the remand award is contrary to the BPA and § 7701(g). See Exception at 2-4. In this regard, the Agency states that, under the definition of “prevailing party” set forth in Buckhannon and adopted by the Merit Systems Protection Board (MSPB) under § 7701(g), a grievant prevails only if he or she has received an enforceable judgment or settlement that directly benefited the grievant at the time of the judgment or settlement. Id. at 3-4. According to the Agency, the grievant is not a prevailing party because of the Agency’s “voluntary and unilateral action” of granting the grievant the disputed comp time before the Arbitrator issued the merits award. Id. (citing Buckhannon; Cole v. DoJ, 90 M.S.P.R. 627 (2001) (Cole); Sacco v. DoJ, 90 M.S.P.R. 37 (2001) (Sacco); Nichols v. Dep’t of Veterans Affairs, 89 M.S.P.R. 554 (2001) (Nichols)).
B.    Union’s Opposition
The Union contends that the award is not contrary to law. In this connection, the Union asserts that, under Buckhannon, what is dispositive is that the grievant obtained a favorable and enforceable award on the merits of the grievance. Opp’n at 3. According to the Union, the Agency’s reliance on the alleged unilateral grant of the disputed comp time is misplaced because that grant did not moot the grievance. Id. at 4. In this connection, the Union maintains that the Arbitrator issued an award sustaining the grievance and determined that it was not moot. Id. The Union also maintains that, if the Agency believed that the grievance was moot, then the Agency should have filed exceptions to the merits award. Id. Because the Agency did not do so, the Union claims that the grievant is the prevailing party as a result of the merits award. Id. at 4.
IV. Analysis and Conclusions
        The Agency’s exception challenges the consistency of the award with the BPA and § 7701(g). The Authority reviews de novo questions of law raised by the exception and the award. In applying a standard of de novo review, the Authority assesses whether the arbitrator’s legal conclusions are consistent with the applicable standard of law. E.g., U.S. Dep’t of Transp., Fed. Aviation Admin., 65 FLRA 320, 322 (2010) (FAA).
        In interpreting the term “prevailing party” in § 7701(g), the Authority has applied the definition of that term set forth in Buckhannon and adopted by the MSPB. Specifically, the Authority has held that a grievant